Evans, R. v

A person relying on the refugee defence under section 31 of the Immigration and Asylum Act 1999 must show a sufficient evidential basis for refugee status. A collection of people is not a particular social group merely because some members may be vulnerable to criminal gangs. The group must exist independently of the feared persecution and possess a relevant common immutable characteristic; cohesiveness is unnecessary.

In a criminal prosecution, the Crown Court must determine refugee status for the statutory defence on the evidence before it. A pending asylum claim does not establish that status. Once refugee status is properly raised, the prosecution must disprove it to the criminal standard, but a conviction remains safe where no evidence could establish the defence.

The appellant, a Jamaican national previously deported from the United Kingdom, arrived at Manchester Airport using a forged British passport. He was charged with possessing a false identity document with improper intent, contrary to section 4(1)(a) of the Identity Documents Act 2010.

At trial he admitted the elements of the offence but relied on section 31 of the Immigration and Asylum Act 1999. He claimed that he feared violence from a Jamaican gang and was a refugee because he belonged to a particular social group. The trial judge ruled that the evidence could not establish refugee status, the jury convicted him, and he received two years’ imprisonment.

On appeal, the issues were whether the proposed groups of returnees or deportees to Jamaica could amount to a particular social group, and whether the jury had been misdirected on the burden and standard of proof.

1. Appeal dismissed. The appellant’s proposed defence under section 31 of the Immigration and Asylum Act 1999 was unavailable as a matter of law. The evidence did not permit the jury to find that he was a refugee within article 1A(2) of the Refugee Convention.

2. Applying Shah and Islam v Secretary of State for the Home Department [1999] 2 AC 629, a particular social group must exist independently of the persecution and be marked by a relevant common immutable characteristic. It need not be cohesive. Neither people returning to Jamaica after residence abroad nor deportees returning there possessed the required characteristics on the evidence.

3. The expert evidence showed only that gangs might target wealthy people and other general potential victims of crime. It did not show that returnees or deportees were targeted as such. If the appellant’s account was accepted, he was one of many people bullied by criminal gangs. That did not establish persecution for a Convention reason.

4. The Secretary of State ordinarily makes the primary decision in a conventional asylum claim. However, where refugee status is an element of a criminal defence, the Crown Court must decide it on the evidence. It cannot presume refugee status merely because an asylum claim has been made.

5. The judge correctly placed on the appellant the burden of proving the express conditions in section 31(1)(a), (b) and (c) on the balance of probabilities. Once refugee status is raised, the prosecution bears the criminal burden of proving that the defendant is not a refugee, as stated in R v Makuwa [2006] EWCA Crim 175. Any lack of clarity on that issue did not render the summing-up defective because the defence was not open on the evidence. Although the judge could not direct a guilty verdict, the admitted offence and absence of an available defence meant that the conviction was not unsafe under section 2 of the Criminal Appeal Act 1968.

• Court of Appeal (Criminal Division)—in Evans, R. v [2013] EWCA Crim 125, dismissed the appeal against conviction.
• Manchester Crown Court—in May 2012, convicted the appellant of possessing a false identity document with improper intent and sentenced him to two years’ imprisonment.